The California Supreme Court recently heard oral argument in Tuolumne Jobs & Small Business Alliance v. Superior Court, No. S207173 (case submitted May 28, 2014), a case that gives the Justices the opportunity to determine whether a City Council's adoption of a voter-sponsored initiative measure, without submitting that measure to a popular vote, was a discretionary act that required CEQA review prior to approval. The Court of Appeal held that the City Council's act was subject to CEQA and that the City Council should have conducted environmental review. (See Tuolomne Jobs & Small Business Alliance v. Sup. Ct. (2012) 210 Cal.App.4th 1006, cert. granted, No. S207173.)
It is established that the California Environmental Quality Act (CEQA) does not apply to a project approved by ballot initiative, where the initiative was placed on the ballot by the voters and adopted by the voters in an election. (14 Cal. Code Regs. § 15378(b); DeVita v. County of Napa (1995) 9 Cal.4th 763, 794.)
In Tuolumne, however, the Appellants Wal-Mart and James Grinnell (jointly, Appellants) took a different approach in seeking to expand an existing Wal-Mart store to a Wal-Mart Supercenter in the City of Sonora. The Appellants submitted a petition supported by the signatures of more than 20 percent of the City of Sonora's 2,489 registered voters to expand the Wal-Mart. The City Council then chose not to submit the measure to an election, and instead, adopted the initiative as an ordinance on its own authority under California Elections Code section 9214(a). Although an EIR was prepared in advance, it was never certified by the City Council.
Under California Elections Code section 9214, when a project applicant submits a voter-sponsored initiative petition to the legislative body of a public agency, signed by at least 15 percent of registered voters, with a request that the ordinance be immediately submitted to a special vote, that body must either: (a) adopt the ordinance, without alteration; (b) immediately order a special election and place the measure on the ballot for popular vote; or (c) order a report pursuant to Elections Code section 9212, which allows for abbreviated environmental review.
The Justices seemed particularly interested in understanding the legislative policy behind the Elections Code's apparent conflict with CEQA and closely questioned the parties at the hearing packed with interested parties.… Continue Reading